Ed. note--Robert Gordon ended Part I of this post asking about Roberts' opposition to legal means of promoting civil rights...

But all this is history.  Why does it matter today?  

It matters because there is a great divide between liberals and conservatives on the appropriate role of federal remedies in federal courts.  Roberts stands on one side of that divide, and that is why his nomination provides an occasion for a national debate over where the rest of us want to stand.

Here's the short and simple story of how this divide came about.  It leaves out a lot of nuance, but I think it's basically right. From the 1880s to the 1940s the federal courts were mostly places for wealthy and powerful interests to seek redress.  Corporations claimed that government efforts to regulate them violated their "due process" rights, took their property without compensation, interfered with their "liberty of contract", or exceeded Congress's power under the commerce clause.  Railroads used the federal "diversity of citizenship" jurisdiction to escape from plaintiffs' tort suits against them in state courts to federal courts that were friendlier to business.  Companies bothered by labor disputes found in federal judges reliable allies who would issue injunctions against striking unions and destroy them with contempt fines and jail time.  In the same period, black people claiming violations of their rights under the Reconstruction Amendments were told that state governments and courts and voting registrars could treat them as badly as they wanted, so long as they weren't too obvious about it; that their only recourse was to change the laws of the states that denied them the vote; and that the federal Constitution didn't reach private action like mob violence at all.  

Progressives and New Dealers concluded that federal courts were hopelessly reactionary and sought to limit their power as much as possible.  But once liberal administrations (including Eisenhower's) had restocked the federal courts with more liberal judges, they discovered new uses for them.  In the 1960s and 70s the federal judiciary was made into the ultimate place for weak and vulnerable individuals and groups to seek redress against governmental and private deprivations of new "rights".  The Warren Court discovered some of these rights - like the rights of blacks not to be segregated by law, of criminal suspects to counsel and to procedurally regular treatment by police, of employees or beneficiaries of government jobs and benefits to "due process" hearings, of women to rights to contraception and abortion  - in the Constitution itself.  But most of the new rights of the period were legislated by Congress, which provided for their enforcement through both administrative action and private lawsuits. The rights were then given wide scope through often far-reaching judicial remedies, such as judicial orders taking over prisons to reform them, or judicial review of federal and state agency action.  Among the people protected were subordinated, marginal, or pariah groups -- blacks, disenfranchised voters, immigrants, prisoners, residents of public housing projects, welfare recipients, bums picked up as vagrants, convicts seeking federal review of state court convictions.  Many others were simply ordinary middle class people --   employees claiming discrimination, consumers victimized by lenders' frauds or dangerous products or shareholders by corporate swindles, people denied social security disability benefits, pensions or health care, or injured by pollution or toxic waste or depredations of wilderness lands.  

When John Roberts and his fellow young legal conservatives arrived in Washington with Ronald Reagan, their first priority was to make a long-range plan to dismantle as much as possible of this entire system of liberal federal rights and remedies.  Since then they have been executing the plan, piece by piece.  Their objective is to take federal courts out of the business of alleviating social and economic inequities and protecting the vulnerable against government or corporate mistreatment.  To them the worst aspect of  the liberal system of appeal to the courts for redress is that it provides a means of second-guessing, and sometimes actually regulating and supervising, decisions of powerful people in authority - executive agencies and departments, state prosecutors, courts and prison administrators, and business decision-makers.  Lawsuits brought by the vulnerable throw sand into the machinery.  They interfere with authority, efficiency, flexibility, and discretion.  Markets will solve problems of inequality as far as they need to be solved.  State governments are in the best position to decide how to spend their resources and enforce their laws.  Judicial oversight usurps the prerogatives of executive government.  

In the Roberts memos, the most frequent criticism of federal policies to protect the vulnerable is that court enforcement of them is